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07/19/91 GREGORY M. LEWIS v. UNITED STATES

July 19, 1991

GREGORY M. LEWIS, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Evelyn E.C. Queen, Trial Judge

Rogers, Chief Judge, and Terry and Farrell, Associate Judges.

The opinion of the court was delivered by: Terry

After a jury trial, appellant Lewis was convicted of possession of cocaine with intent to distribute it. *fn1 On appeal he contends that the trial court erred in denying his motion to suppress the cocaine as well as a loaded gun, *fn2 both of which had been seized at the time of his arrest. We hold -- for reasons other than those relied upon by the trial court -- that the motion was properly denied, and accordingly we affirm the conviction.

I

Lewis was arrested on February 1, 1989, in apartment 303 of the Barnaby Manor Apartments on Barnaby Terrace, S.E. Monique Lilly, the resident manager of the Barnaby Manor Apartments, testified that at that time the tenant of apartment 303 was Beatrice Robinson. According to Lilly, the management had had some problems with Robinson and had tried to get her to move out. Robinson had signed a notice of intent to vacate on December 21, 1988, in which she agreed to vacate apartment 303 on or before January 12, 1989. In addition, the management had obtained two writs of eviction, the first effective from December 21, 1988, until January 12, 1989, and the second effective from January 30 through February 28, 1989.

Lilly testified that she last saw Robinson on December 21, the day she signed the notice of intent to vacate. She later heard from other tenants that Robinson had vacated the apartment on January 12, but Lilly did not personally see her leave, nor did Robinson ever turn in her keys to the apartment. Furthermore, Lilly inspected the apartment after January 12 and found Robinson's furniture still there, "along with several other people," although Robinson herself was not there. Lilly said that she suspected there was drug activity going on inside the apartment.

On February 1 Lilly sent two maintenance workers to apartment 303 because water was leaking from that apartment into the unit below. The workers entered the apartment and found about fifteen or twenty people there. They appeared to be using drugs and refused to allow the workers access to the master bedroom. The workers reported this to Lilly, who promptly called the police.

Metropolitan Police Officers Gregory Kidd, Paul Wingate, and several others arrived at approximately 2:00 p.m. in response to Lilly's call. Kidd testified that after speaking first with Mrs. Lilly, who said that apartment 303 was "a vacant unit" and that there were "unlawful individuals in that apartment that didn't belong there," he and his fellow officers went to apartment 303 and knocked on the door. One of the occupants opened the door, and the officers went into the apartment, where they saw "numerous" drug paraphernalia.

Officer Wingate went into the master bedroom and found appellant Lewis lying on the bed. *fn3 Another person, not further identified, was also in the bedroom. Wingate directed Lewis into another room, where he was placed under arrest. Officer Kidd then searched him and found in his pocket nine plastic bags containing cocaine, along with a quantity of cash. In a wallet or "handbag" in the bedroom another officer found a loaded pistol and various items bearing Lewis' name.

Lewis testified that he had been invited to a party at the apartment by some friends in the early morning hours of February 1. He said that he had known the tenant of the apartment, Beatrice Robinson, for approximately two months and that he had been at the apartment on six or eight prior occasions. When he arrived at the party at approximately 3:00 a.m., Robinson met him at the door and entertained him for a while. The apartment was furnished as it had been on prior visits, and there were some new furnishings as well. At some point, Lewis testified, Robinson escorted him to the bedroom so that he could lie down. He lay across Robinson's bed and fell asleep. Lewis said that there were sheets on the bed *fn4 and that he slept for some time, waking up intermittently when other people came into the room to get their coats. Lewis was still asleep when the police came into the room on the afternoon of February 1. He said that Robinson was not in the apartment when the police arrived and that he had heard she had left to visit her mother, who lived nearby.

The trial court denied Lewis' motion to suppress. The court found, on the basis of the writs of eviction and the notice of intent to vacate, that Robinson had "surrendered control" of the apartment on January 12; consequently, the corporation that managed the apartment was the only lawful occupant of the apartment on February 1, and any other occupant was a trespasser. The court credited Lilly's testimony that she was a representative of the corporation and concluded that only the corporation had the right to extend an invitation to Lewis. It then ruled that Lewis had no reasonable expectation of privacy in the apartment because no lawful occupant of the apartment had extended him an invitation to be there. Although we base our ruling on different grounds, we affirm the trial court's Conclusion that Lewis lacked a reasonable expectation of privacy in the apartment.

II

The capacity or "standing" to challenge a search depends on whether the person claiming the protection of the Fourth Amendment "has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); accord, United States v. Booth, 455 A.2d 1351, 1353 (D.C. 1983). "A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable." Minnesota v. Olson, 495 U.S. 91, 110 S. Ct. 1684, 1687, 109 L. Ed. 2d 85 (1990) (citations and internal quotation marks omitted).

The Supreme Court held in Olson that an overnight guest in someone's home has standing to challenge an illegal search of that home because society would recognize the guest's expectation of privacy in the host's residence as reasonable. The holding in Olson was based on the premise that "we are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings." Id. at 1689. The Court reasoned that because the traditional social custom of having overnight guests necessarily entails sleep, overnight guests have a legitimate expectation of privacy in their ...


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